A Separation Agreement is an agreement on all the issues you and your spouse need to resolve before getting divorced, such as the division of marital property (assets and debts), child custody, visitation and support issues, and Temporary Maintenance and Post Divorce Maintenance (commonly known as ‘alimony or spousal support’), if any. The separation agreement must be signed and notarized by both you and your spouse. By having a separation agreement, the spouses are able to decide everything and have total control over the outcome of the divorce proceedings.
If you proceed with a divorce based on a written separation agreement, the agreement can be “converted” into a divorce judgment so that the terms of the agreement become part of the divorce judgment. You can start the divorce action on these grounds after you and your spouse have been living separate and apart for at least one year from the date the Separation Agreement was signed (“conversion” divorce.) Provided the court approves of the agreement, a conversion divorce is usually an uncontested proceeding and no hearing is generally required.
If you have a Separation Agreement that is to form the grounds for divorce, the ORIGINAL agreement must be filed with the court prior to, or at the same time as, the divorce action is started. Also, the parties must have been living separate and apart for more than one year after signing the Separation Agreement in order to meet the requirements of the Separation Agreement grounds for divorce.
Under what circumstances can I file for a divorce based on the fact that my spouse and I are separated?
In order to file for divorce when you are separated from your spouse you must have been living separate from your spouse for at least one full year:
(1) SINCE the signing by both parties of a written Separation Agreement; or (2) SINCE your spouse left you; or
(3) SINCE your spouse denied you access to the marital residence; or
(4) SINCE your spouse your spouse refused to have sex with you.
Any of the above is necessary in order for the separation of the parties to constitute a valid basis for a divorce.
If you are living with your spouse but your spouse has refused to have sex with you for at least one year, you can start divorce proceedings based on “sexual abandonment” grounds. The date of sexual abandonment is the date that your spouse began refusing to have sex with you, even though you were living together at the time.
You can begin an action for divorce based on abandonment grounds if more than one year has passed since one of the following incidents happened:
1. Your spouse moved out of the marital residence without your consent (“Actual abandonment”); or
2. Your spouse made you leave the marital residence without your consent and has refused to allow you to move back in (“lock-out abandonment”); or
3. Your spouse refused to have sex with you, despite your repeated requests (constructive abandonment).
If you don’t want to use no-fault, in order to get a divorce you must state legally recognized “grounds” for divorce in your papers, even if both you and your spouse want the divorce. Premier Paralegal can help you get divorce using ONLY the following grounds:
1. Abandonment (actual, constructive or sexual)
2. Living apart pursuant to a written separation agreement
3. Cruel and inhuman treatment.
Other grounds for divorce such as adultery and confinement to prison are available for you to use if you wish. However, Premier Paralegal cannot help you get divorced using those grounds.
Although adultery is also a valid ground for divorce, it is rarely used as the adultery must be proven by the sworn testimony of an independent witness. Even admission by the adulterer or their lover is not sufficient proof to get a divorce on the basis of adultery. Instances of adultery in New York are more commonly cited as an example of cruel and inhuman treatment (although courts will rarely consider an isolated incident of adultery to constitute cruelty grounds.) Although imprisonment is also a ground for divorce, the imprisonment must have begun after the marriage and must have lasted on for at least three years.
Premier Paralegal cannot assist you with a divorce on the grounds of Imprisonment or Adultery, though where these exist other grounds (for which Premier Paralegal is able to prepare divorce documents) will often apply. You should consult with an attorney first if you grounds are complex or unusual. After you consult with an attorney, it may be appropriate for you to utilize the services of PREMIER PARALEGAL.
In New York, you can now get divorced without either party admitting any fault. Domestic Relations Law §170 was amended on October 12, 2010 to add “irretrievable breakdown” in subdivision 7 as a “no-fault ground” for divorce. It provides that a husband or wife may be granted a judgment or divorce on the ground that: “(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.”
In order to establish a cause of action and obtain a divorce under Domestic Relations Law §170 (7) the plaintiff must satisfy the residence requirements of Domestic Relations Law § 230, and, in addition, establish that: (1) the relationship between husband and wife is irretrievably broken; (2) for a period of at least six months; and (3) the plaintiff or defendant must state under oath that the relationship between husband and wife is irretrievably broken.
However, no judgment of divorce may be granted upon such a finding unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce. This means that you and your spouse MUST AGREE and both you and your spouse BOTH MUST SIGN ALL PAPERS we prepare if you want a “no-fault” divorce.
It is proper to file in the county where you reside, or in the county where your spouse resides. It is possible to file in another county if the parties agree, and the court will allow it. Be advised that it is strictly at the pleasure of the court whether or not they will take your divorce in a county that neither you nor your spouse resides in!
Generally, the New York courts will be able to divorce the husband and wife. However, if the children are not residents of the State of New York, the New York courts generally can not make orders about custody, visitation, or child support.
New York courts will only accept your divorce case if they have “jurisdiction” to do so. New York courts generally have jurisdiction where:
Either you or your spouse has lived in New York continuously for at least two years at the time you start the divorce action (file the divorce summons)
Either you or your spouse has lived in New York continuously for at least one year at the time you start the divorce action AND (1) the marriage took place in New York, or (2) you lived with your spouse as a married couple in New York, or (3) the grounds for divorce occurred in New York.
If no response has been filed and no judgment has been obtained, the spouse who began the divorce action can file a form informing the court that he or she does not wish to pursue the divorce (“Notice of Discontinuance”) and the case will be dismissed.
If your spouse has responded to your papers, both parties have to sign an agreement (“stipulation”) stating that you would both like the case to be dismissed.
Once the judgment of divorce has been entered, you are no longer married and you would have to re-marry your former spouse to resume your status as husband and wife.
If a response to your papers is filed by your spouse, the case is contested. The proper form of a response is a “Notice of Appearance,” which usually contains a “Demand for a Complaint.” CONTACT Premier Paralegal IMMEDIATELY.
You will respond to this Notice by serving (by mail) and filing a “Verified Complaint” which details the grounds for the divorce and the relief requested. If your spouse fails to respond to the Complaint within 20 days, you will proceed to file your uncontested divorce papers because your spouse has seen the complaint and failed to respond (i.e. “by default”, accepts what is contained in the complaint.)
If, on the other hand, your spouse does send you a “Verified Answer” to your Complaint, the case is “contested” and you can go forward with the divorce only by agreement (“Stipulation of Settlement”) or by doing legal battle in court.
You can try to reach an agreement by discussing the issues with your spouse or with the help of a mediator. If the case becomes contested, temporary maintenance may be ordered by the judge until a final settlement is reached or the divorce is finalized.
Alternatively, you can hire attorneys to help you reach an agreement with one another, or to help you go to trial, where the judge will decide the outcome.
Premier Paralegal can help you with your uncontested divorce case by preparing all of the necessary court documents.
Premier Paralegal can also help with personal service and service by mail of documents where required, and by putting your agreement on the terms of the divorce, where appropriate, into the format of a Stipulation of Settlement.
However, if your case becomes contested, or the Court decides that it considers the case to be contested, Premier Paralegal cannot assist you any further. Premier Paralegal can, however, refer you to a mediator or a private attorney upon request.
In order to get divorced you must either agree with your spouse that your case will be a ‘no-fault’ divorce, or you must demonstrate grounds for divorce. You can also obtain a divorce in New York on the grounds that the parties have been living separate and apart pursuant to a written Separation Agreement for at least one year.
Even if you use other grounds for divorce, if you and your spouse are able to reach a written agreement on all the issues, the agreement (Separation Agreement or Stipulation of Settlement) will be included in the divorce papers that are filed with the court and incorporated into the divorce judgment. If you are able to reach an agreement with your spouse and set it down on paper in this way, it is much more likely that:
✓ The orders in the requested in the proposed judgment of divorce will be granted.
✓ You will not have to go to court to have a hearing on the issues of division of property, spousal or child support, or custody and visitation.
✓ Your spouse will be more willing to let the divorce go through without opposition or legal representation, since the terms of the divorce judgment are settled ahead of time.
✓ Your spouse will comply with the terms of the divorce after the judgment.